A.N Varma, J.:— At the instance of the Revenue, the following questions have been referred for our opinion:

“1. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was right in holding that the appeal filed by the applicant was barred by limitation?

2. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal has not committed an error in refusing to entertain additional evidence on the technical ground as it was an important piece of evidence to decide the controversy?

3. Whether, on the facts and circumstances of the case, it could legally be said that the Department had discharged its burden to prove by sufficient material that the service of the assessment orders/demand notices were made upon the applicant on October 24, 1968?”

2. The assessee is a Hindu undivided family and was, during the relevant time, carrying on sarafa business at Moth in the district of Jhansi under the name and style of Messrs. Jagannath Prasad Kanhaiyalal. The assessment years under consideration were 1956-57 to 1960-61 and 1964-65 to 1967-68. Tika Ram Yadav was the karta of the family. By a consolidated order dated October 9, 1968, the Income-tax Officer made an assessment of the income of the said firm in respect of the assessment years in question. On I.T.N.S—51, the Income-tax Officer reported that the assessment order and demand notice had been served on the assessee on October 24, 1968. Thereupon, recovery proceedings commenced somewhere in May, 1970, by the assessing Income-tax Officer. These proceedings were challenged by the assessee by way of a writ petition in this court being Writ Petition No. 29 of 1974. The recovery proceedings were challenged on the ground that neither the order of assessment nor any notice of demand had been served on the assessee and, consequently, the recovery proceedings were completely without jurisdiction. A counter-affidavit was filed by the Income-tax Officer wherein he categorically asserted that both the assessment order as well as the notice of demand had been served personally on Tika Ram on October 24, 1968. Thereafter, the said petition Was dismissed as not pressed on the statement of learned counsel for the assessee by an order dated December 5, 1974. For the time being it is not necessary to elaborate the correspondence that ensued thereafter between the assessee and the Income-tax Officer concerned. On August 2, 1977, the assessee filed nine appeals against the consolidated order of the Income-tax Officer dated October 9, 1968. On I.T.N.S —51, the Income-tax Officer reported that as the assessment order and demand notice had been served on the appellant on October 24, 1968, the appeals filed on August 2, 1977, were clearly out of time. Thereupon, a show-cause notice was issued to the appellant on September 6, 1978, which was replied to by the assessee's counsel, vide letter dated September 18, 1978, stating that his client had been asked to furnish proof of his old age and as the karta had expired, he be allowed one month's time for furnishing the necessary evidence explaining the delay. It was also asserted that the assessment orders were served only on July 24, 1977, and, therefore, the appeals filed on August 2, 1977, were within time. Oh February 22, 1979, another show-cause notice was issued in reply to which counsel for the assessee reiterated that the demand notices were served on the assessee on July 24, 1977, and that the assessment order had not been served even when recovery proceedings were initiated in 1970. Thereupon the Income-tax Officer, Jhansi, was asked by the Appellate Assistant Commissioner to explain the circumstances with regard to the service of the assessment order and demand notice on the assessee. The Income-tax Officer submitted a reply dated July 17, 1979, stating that both the assessment order and the demand notice had been duly served on the assessee on October 24, 1968. This fact was corroborated by the affidavit of the then Income-tax Officer, Jhansi, filed in the abovenoted writ petition in this court in which it was clearly asserted that the assessment order and the demand notice had both been served personally on Tika Ram Yadav on October 24, 1968. The Income-tax Officer, in his reply dated July 17, 1979, further stated that the common acknowledgment slip in respect of the service of the assessment order and demand notice was pasted on the notice of demand for the assessment year 1964-65. There is a clear impression on that notice of demand of the acknowledgment slip pasted thereon which, according to the Income-tax Officer, was intact so long as the writ petition was pending in the High Court but the said slip has been removed therefrom subsequent.

3. The Appellate Assistant Commissioner considered the entire material existing on record and came to the conclusion that the assessment order and the demand notice had been served on Tika Ram Yadav on October 24, 1968, and by a consolidated order dismissed all the nine appeals on the ground of limitation.

4. Thereafter, the assessee filed a further appeal before the Tribunal. With the memorandum of appeal, the assessee filed some fresh documents by way of additional evidence without any application or affidavit stating their relevance or why the same were not filed earlier. The representative of the Department filed a written objection dated January 14, 1980, regarding the manner in which additional evidence was sought to be brought on record by the assessee without following the procedure prescribed by the Income-tax (Appellate Tribunal) Rules, 1963. It was pointed out that these documents, all dated October 24, 1968, were not filed before the Income-tax Officer or even the Appellate Assistant Commissioner and that the said documents ought not to be allowed to be brought on record in view of the principles laid down in the decision Velji Deoraj & Co., [1968] 68 ITR 708 (Bom).

5. By its order dated November 20, 1980, the Tribunal affirmed the order of the Appellate Assistant Commissioner and dismissed all the appeals. The Tribunal held that the order of assessment and the demand notice had been duly served on the assessee on October 24, 1968. The appeals filed by the assessee on August 2, 1977, were hence clearly barred by limitation and were rightly dismissed by the Appellate Assistant Commissioner. In regard to the additional evidence, the Tribunal upheld the objection of the Department's representative and observed that the assessee had not complied with the procedure prescribed under the Income-tax (Appellate Tribunal) Rules, 1963. On merits, the Tribunal negatived the assertion of the assessee that the assessment order/notice of demand had not been served on October 24, 1968, but only on July 24, 1977.

6. We will take up the first question first. As mentioned above, both the Appellate Assistant Commissioner and the Tribunal have recorded a categorical finding that the assessment order as well as the demand notices had been personally served on Tika Ram Yadav on October 24, 1968. This finding is based on the affidavit of the then Income-tax Officer submitted in the writ petition filed by the assessee in this court. In the reply of the Income-tax Officer sent to the Appellate Assistant Commissioner, it has been further asserted that the service of the notice of demand and assessment orders for all the years in question was made under a common acknowledgment slip. This acknowledgment slip was there on the record at the time of verification of the counter-affidavit filed in the High Court. The slip had been pasted on the notice of demand for the assessment year 1964-65. However, subsequently, after the dismissal of the writ petition, that slip was removed from the record. The Income-tax Officer further states that on the record, there is a clear impression of the removal of the slip which was pasted thereon.

7. These are all relevant facts and circumstances constituting sufficient basis for the conclusion reached by the Tribunal that the assessment orders/notices of demand had been duly served on the assessee as far back as October 24, 1968. The appeals filed by the assessee on August 2, 1977, were hence clearly barred by time and rightly dismissed as such in view of the fact that the only plea raised by the assessee, that the assessment orders/notices of demand were served on it on July 24, 1977, and not earlier, had been rejected on grounds which are perfectly valid and proper. The result is that the first question must be answered in the affirmative and against the assessee.

8. We will next take up the third question. We have already, while answering the first question, referred to the material which existed on the record in support of the finding of the Tribunal that the appeals filed by the assessee before the Appellate Assistant Commissioner were clearly barred by time. On that material, there cannot be the slightest doubt that the Department had fully discharged its burden to prove that the assessment orders/demand notices had been served on the assessee on October 24, 1968. It is not necessary to refer to that material again.

9. Learned counsel for the assessee, however, submitted that without examining the process server and the demand and collection register, the finding that the assessee had been personally served should not have been recorded. We regret our inability to accept the contention. Whether the burden of proof has been discharged or not depends on the facts and circumstances, of each case. There cannot be any cut and dried formula capable of application in all cases and in all circumstances. There may be cases where a mere affidavit of the Income-tax Officer or other material existing on the record may not be sufficient to justify a finding of service of the notice of demand or assessment order and production of the process server may be deemed necessary. Be that as it may, we cannot accept the extreme contention that the burden to prove service of notice cannot be discharged except by the examination of the process server or production of the demand collection register. On the state of the record existing in the present case, we are not persuaded that the burden of proof has not been discharged by the Department nor that the omission to examine the process server and the demand and collection register has resulted in that burden not being discharged. We, therefore, answer this question too in the affirmative.

10. That takes us to the second question on which learned counsel for the assessee mainly concentrated. As already mentioned, the assessee enclosed with the appeal form filed before the Tribunal, four documents in Hindi all dated October 24, 1968. These documents were admittedly not filed before the Income-tax Officer nor even before the Appellate Assistant Commissioner. Indeed, the assessee had not even attempted to file these documents before those authorities. A written objection was filed on January 14, 1980, by the Department's representative. The objection raised was that this additional evidence was being filed in violation of rule 29 of the Income-tax (Appellate Tribunal) Rules. This objection has been upheld by the Tribunal

11. It will be recalled that the assessee had not filed any application or affidavit before the Tribunal either with the memorandum of appeal or even after the filing of the objection by the Department's representative. It is also not disputed that the Tribunal itself did not require these documents for any of the reasons mentioned in rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963. Nor was it the case of the assessee that it was not afforded the opportunity to adduce that evidence before the Income-tax Officer. Neither even was it alleged that these documents were either not in the possession of the assessee nor it could not by exercise of due diligence obtain the same earlier.

12. It is thus apparent that none of the grounds or conditions precedent mentioned in rule 29 for the exercise of power or discretion by the Tribunal had been either alleged or established. The assessee had not indicated by means of any application or affidavit even the relevance of these documents. It appears that the assessee insisted that these documents be accepted on the record as a matter of course in support of his appeals.

13. The Tribunal declined to accept the additional evidence stating that on due consideration of the rival contentions, it was not inclined to entertain additional evidence at that stage, since the assessee had not observed the prescribed procedure laid down in the Income-tax (Appellate Tribunal) Rules, 1963.

14. For the assessee, it was contended before us that rule 29 does not require or prescribe the making of any formal application for leave to adduce additional evidence. Nor is there any other formality required under that rule for bringing on record additional evidence before the Tribunal which is the final fact-finding authority. That being so, it was argued, the Tribunal was clearly in error in declining to accept additional evidence on the ground that the assessee had not observed the prescribed procedure laid down in the Income-tax (Appellate Tribunal) Rules, 1963.

15. The submission is devoid of any merit and is clearly founded upon a misconception of the true import of the finding of the Tribunal. It is true that rule 29 itself does not in so many words prescribe making of any formal application for additional evidence. However, rule 29 does lay down the conditions precedent and circumstances in which, even though the assessee has no right to adduce additional evidence at that stage, the Tribunal may admit additional evidence. In order to appreciate this controversy, it will be convenient to extract here rule 29. It provides:

“Production of additional evidence before the Tribunal.—The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving Sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.”

16. This rule unambiguously States that the parties to the appeal before the Tribunal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal. It, however, vests a discretion and power in the Tribunal to admit additional evidence if it so required or for a substantial cause or if the Income-tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence. The admission of additional evidence at the appellate stage before the Tribunal is thus not referable to any right of the party to produce the evidence. A party desiring to adduce additional evidence having a decisive or clinching value with reference to the points at issue may, however, invite the Tribunal to invoke its power under rule 29 on the ground that the evidence was not available earlier or the party was prevented from adducing it before the authorities below or for any other substantial cause. But, for asking the Tribunal to exercise this power, the party shall have to lay the necessary foundation relevant in the context of the conditions prescribed under rule 29. A clear and specific pleading in support of the claim that a case for allowing additional evidence at the appellate stage before the Tribunal has been made out shall have to be furnished by way of notice to the other side in the shape of either of an application or an affidavit. And if the party fails to lay that foundation, the Tribunal may legitimately decline to exercise its discretion under rule 29. It is in this sense that the Tribunal has observed that the procedure prescribed for bringing on record additional evidence at this stage has not been followed by the assessee. In Black's Law Dictionary, at page 1083, the term “procedure” has been defined as:

“The mode of proceeding by which a legal right is enforced…… Procedure is machinery for carrying on suit including pleading, process, evidence and practice, whether in trial court or appellate court.”

(emphasis* added).

17. It will thus be seen that procedure includes both the mode or manner of proceeding by which a legal right is enforced as well as the pleadings in support of that claim or right. It is in the latter sense that the Tribunal appears to have used the term “the prescribed procedure”. In brief, the reason why the Tribunal declined to accept the additional evidence was that the assessee had not established the conditions precedent for the exercise of power under rule 29.

18. In Velji Deoraj and Co. v. CIT, [1968] 68 ITR 708, their Lordships of the Bombay High Court observed, at pages 714 and 715, as follows:

“It would, therefore, be seen that the admission of the additional evidence in the appeal before the Tribunal is dependent upon the Tribunal having required it for the purpose of pronouncing its judgment or for the purpose of curing some inherent lacuna which it has itself discovered. In the present case, the Tribunal found no difficulty in pronouncing its judgment on the material which was on record, nor did it discover any lacuna or defect, which it was necessary to cure, before judgment was pronounced in the case. Where parties to a litigation had proper opportunity to produce all the evidence available to them at the proper stage and have failed to avail of the said opportunity, they could not be enabled to have a further innings by asking the appellate court to allow additional evidence to be produced at that stage. Since in the present case the Tribunal did not find the additional evidence to be necessary, its refusal to allow the said additional evidence to be produced cannot in any way be said to be illegal or improper and the assessee is not entitled to make any grievance in respect of the same. The first question, therefore, will have to be answered in the negative.”

19. With respect, we find ourselves in complete agreement with the above statement of the law. The observations of their Lordships of the Supreme Court in the case of Keshav Mills Co. Ltd. v. CIT, [1965] 56 ITR 365 at pages 380 and 381 are also on the same lines. It reads:

“The scheme of the Act appears to be that before the Income-tax Officer all the relevant and material evidence is adduced. When the matter goes before the Appellate Assistant Commissioner, he is authorised under section 31(2) to make such further enquiry as he thinks fit, or cause further enquiry to be made by the Income-tax Officer before he disposes of the appeal filed before him. Section 31(2) means that at the appellate stage additional evidence may be taken and further enquiry may be made in the discretion of the Appellate Assistant Commissioner. When the matter goes before the Appellate Tribunal under section 33, the question about the admission of additional evidence is governed by rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963. This rule provides that the parties to the appeal shall not be entitled to produce additional evidence, either oral or documentary, before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income-tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by him or not specified by him, the Tribunal may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.”

20. These two decisions furnish a complete answer to the petitioner's contention. The decision of the Tribunal not to accept additional evidence in the manner in which it was attempted to be brought on record is in accordance with these decisions.

21. The decision cited in Velji Deoraj and Co.'s case, [1968] 68 ITR 708 (Bom) is also mentioned in the objection filed by the Department's representative on January 14, 1980, as well as April 1, 1980. In the latter objection, it was clearly asserted that the assessee had made no request till then for bringing on record the document annexed to the memorandum of appeal and that no such request had been made by the assessee so far. The finding of the Tribunal shall have to be read in the light of the written objections filed by the Department's representative.

22. Our conclusion, therefore, is that the Tribunal has committed no error in refusing to entertain the additional evidence. The ground on which the Tribunal refused to accept the additional evidence was not a mere technicality but one which affected the substance of the matter, namely, the right of the assessee to adduce additional evidence at that stage. Before concluding, we may dispose of an objection raised by learned counsel for the assessee in regard to the statement of the case drawn up by the Tribunal. It was submitted that certain facts which ought to have been included in the statement have been wrongly omitted therefrom and, consequently, a supplementary statement ought to be called for from the Tribunal. We, however, find no merit in this objection. We have perused the supplementary affidavit filed in this reference by the assessee as well as the written submissions filed before the Tribunal and are clearly of the opinion that having regard to the questions referred to us for our opinion, the statement of the case submitted by the Tribunal is complete in all respects. All the relevant facts have been incorporated in the statement. There is hence no need for calling for a supplementary statement from the Tribunal or to accept the documents referred to in the supplementary affidavit at this stage.

23. In the result, we answer the first and the third questions in the affirmative, in favour of the Revenue and against the essessee. The second question is also answered in the affirmative, in favour of the Revenue and against the assessee, that is, the Tribunal has committed no error in refusing to entertain the additional evidence.